State v. Weathers

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Questions Presented

1. Whether trial counsel was ineffective for failing to renew the motion to suppress or object to DNA evidence allegedly derived from improper collection or use of a 2014 DNA sample.
2. Whether collection of Weathers' DNA pursuant to Neb. Rev. Stat. § 29-4106 and use of reasonable force authorized by that statute violated the Fourth Amendment.
3. Whether trial counsel was ineffective for failing to object to the DNA evidence for lack of chain of custody.
4. Whether the district court abused its discretion by denying Weathers' request to remove appointed counsel and appoint substitute counsel.
5. Whether additional ineffective-assistance claims could be resolved on the direct-appeal record or had to be preserved for postconviction review.
6. Whether admission of the DNA evidence constituted plain error.

Holdings

1. An ineffective-assistance claim raised on direct appeal may be decided only when the record is sufficient to determine that counsel's performance was not deficient, the defendant could not establish prejudice, or counsel's conduct could not be justified as a plausible trial strategy. Claims that cannot be resolved on the direct-appeal record are not thereby adjudicated on their merits and may be preserved for postconviction review if stated with sufficient particularity.
2. Neb. Rev. Stat. § 29-4106(1)(a) requires a convicted felon to provide a DNA sample once the felon begins serving the sentence and does not make collection at the end of the sentence the exclusive enforcement mechanism.
3. Neb. Rev. Stat. § 29-4106 inherently authorizes the use of reasonable force to collect a required DNA sample from a convicted felon, and the use of reasonable force for that otherwise lawful collection does not violate the Fourth Amendment.
4. The DNA evidence was admissible, and counsel was not ineffective for failing to renew the suppression motion or object to admission because the asserted challenges to the 2014 sample and June 5, 2017, collection would not have succeeded. Admission of the evidence was not plain error.
5. The record was sufficient to establish the chain of custody for the DNA evidence, so counsel was not ineffective for failing to object on that basis.
6. The district court did not abuse its discretion by refusing to remove appointed counsel and appoint substitute counsel because Weathers showed dissatisfaction and alleged deficiencies but did not establish good cause or counsel's incompetence.

Key quotations

Factual background

Weathers was convicted of two unrelated 2014 felony sexual assaults and, pursuant to Nebraska's DNA statute, was required to provide a DNA sample for the State DNA Sample Bank. After he refused to provide the sample voluntarily, a court order authorized corrections employees to use reasonable force, and a sample was collected on June 5, 2017. The resulting database match led to a June 12, 2017, probable-cause order authorizing collection of additional samples, which matched DNA evidence from four 2002 and 2004 sexual assaults. At trial, the State introduced the DNA results and other evidence, and the jury convicted Weathers on all four counts.

Procedural history

The Douglas County District Court denied Weathers' motion to suppress DNA evidence and denied his motion to dismiss appointed counsel and obtain substitute counsel. Following a jury trial, Weathers was convicted of four counts of first degree sexual assault and sentenced to consecutive terms of 40 to 50 years' imprisonment. He appealed with new counsel, asserting plain error, abuse of discretion, and ineffective-assistance claims.